JSC, tribunal of limited jurisdiction’ - Part IV:

‘VIOLATION of constitution cannot be JUSTIFIED’

Text of the speech delivered by External Affairs Minister Prof. G.L. Peiris in Parliament on October 25, 2012

There is nothing wrong in that. Therefore, why are such wrong interpretations given? Wijayadasa Rajapaksa and Anura Kumara Dissanayake spoke of the relationship that should exist among the Legislature, the Executive and the Judiciary. Wijayadasa Rajapaksa used the word ‘balance’. The funds required for this purpose are provided by the Legislature on a request of the Executive. Other than the Executive, who else can bring that estimate to Parliament? It is the Executive that brings that estimate to Parliament. If it is to be rejected, - (Interruption) it is entirely wrong. It is an entirely wrong course of action. Deputy Chairman of Committees, this is the real situation on this matter.

The matter of filing a case was mentioned. That is not a matter within the purview of the Legislature. Deputy Chairman of Committees, I would like to tell you that the first law that I presented to this House in October 1994 was on that subject. That was the Bill to establish the Commission of Inquiry into Bribery and Corruption. I can still remember the preparation of that Bill and the first speech I made in this House on its presentation. Its aim was to, even without seeking the assistance of lawyers from the Attorney General’s Department, provide that Commission with the services of a team of completely independent lawyers and prepare a structure that could function independently. It was such a structure that was established at that time. Prior to that, it was under the Ministry of Justice.

Therefore, that Bill was presented in Parliament to take it out of the control of the Minister of Justice and established an independent commission. That Bill was not passed with a two-thirds majority. I still vividly recall that the Leader of the Opposition at the time was Gamini Dissanayake. He had discussions with me about that Bill. The voting on that occasion was by name. All Members rose in the House and - not two thirds - but a hundred percent voted in favour of it.

That is this Act. At the time I presented that Bill to the House in 1994 corruption was not a criminal offence under the laws of Sri Lanka. There was Bribery. Corruption was not there. The crime of corruption has a much wider scope than the crime of bribery. That is now a responsibility of the government. Deputy Chairman of Committees, what should be done is not to heap the responsibility and blame everything on the government.

District Judges

There was the mention about a strike by District Judges. The Judges in some grades in this country were on strike for one day. Later, those District Judges met at the Colombo District Court. A substantial number of those judges who met at the Colombo District Court raised a question. They asked why such conclusions are arrived at so lightly; that this was done by the government. They said “We do not believe that as we are judicial officers. For that very reason we must examine the evidence. Before reaching a prior conclusion, we must independently examine the evidence and arrive at certain conclusions.” They expressed that opinion strongly. It is not us, but the judges of this country.

Unclear views

Therefore, when a question like this arises, what should not be done is to act with emotion and excitement to gain political advantage. Let us look at what has happened. There is no benefit to the government from this situation. All can see that these types of condemnations, criticism are invariably directed against the government. This is to be expected. If so, why should the government do such a thing? That opinion was not expressed by me; it was by the judges who gathered that day at the Colombo District Court.

Deputy Chairman of Committees, what course of action should this House follow with regard to the future? There are certain questions and unclear views here about the functions of the Judicial Service Commission. I state very clearly that the Judicial Service Commission has violated the constitution, and through this means has acted wrongly not against the government, but against the judges.

There are plenty of judges who have complaints about this and I know this very clearly. They speak to me as their teacher. Their mindset (interruption) What is wrong in that? (Interruption) No. There is nothing wrong in that (Interruption) No, no, I spoke of the Supreme Court (interruption) No, no. A judge has the right to speak to one’s teacher if necessary.

Not to discuss about cases which are before the courts (Interruption) No, no, the question is what such discussion is about. Not about cases. No one asks me how the case is to be decided. (Interruption) But, if they have some complaints, a certain (Interruption)

(Deputy Chairman of Committees)

Ajith Perera, speak during your time.

(Prof. Peiris)

If there has been some injustice caused by the judges in this country to whom can they complain? Is there no one? Is there no relief or remedy for them? (Interruption) I have clearly shown this House that the constitution has been violated with regard to this appointment.

Do you say there is no remedy for it? There should be a remedy. (Interruption) If not, are the judges who have faced injustice to be kept in that helpless position? Is there no person or institution in this country to provide them refuge or relief?

(Interruption - by Dayasiri Jayasekera)

(Dinesh Gunawardena)

He is also a pupil (Interruption)

(Dayasiri Jayasekera)

I would like to ask the Minister about this matter. I had intended to state this in my speech. Will you please tell me the history of a High Court judge being appointed as Secretary to the Judicial Service Commission?

(Prof. Peiris)

No no I do not say a High Court…….

(Dayasiri Jayasekera)

No such person has been appointed.

(Ajith P Perera)

He said so

(Prof. Peiris)

No no, I do not say that a High Court judge has to be appointed as Secretary of the Judicial Service Commission. I state that it is entirely wrong to overlook 29 senior judges and appoint the 30th. Why is the 30th appointed? What special qualification does the 30th have? (Interruption) No no, not necessary (Interruption).

I do not say that a High Court judge should be a Secretary of the Judicial Service Commission. I very boldly state that if a District Judge is appointed as Secretary of the Judicial Service Commission, ignoring 29 senior judges and appointing the 30th, is an act that can in no way be justified. Making such an appointment is entirely wrong.

There is no need to appoint a High Court judge as Secretary of the Judicial Service Commission, but in keeping with the constitution, a senior judge from among the District Judges.

Deputy Chairman of Committees, why have these questions arisen? The Judicial Service Commission too has taken some stubborn, self-willed decisions. The Legislature has a duty to consider whether future action is necessary about this, whether certain remedies are necessary.

This means that where very wide discretionary powers have been given, this Legislature has the duty to take suitable action about the improper use of such discretionary powers. Having stated this, Deputy Chairman of Committees, I conclude by thanking you and this House for giving me the opportunity to express my views in this debate.

Concluded